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The Current Retaliation Landscape

By: Anne G. Brown

Humanity has been motivated by revenge since the days of Cain and Abel. Therefore, it probably isn’t surprising that retaliation is the fastest growing charge at the EEOC and 37.4 percent of its caseload.

For a long time Plaintiffs’ attorneys have been adding retaliation claims to their complaints for a number of strategic reasons, among them: (1) retaliation is an easy concept for juries to understand; (2) retaliation charges present more cleanly than discrimination charges; and (3) it is more difficult for employers to get a retaliation claim tossed out on summary judgment.

In the last six years, changes in federal and certain states’ laws have allowed for retaliation claims to become even more popular.

It used to be that there had to be an adverse employment action for a retaliation claim to be viable. Traditionally, this meant that the employee had to have been terminated, demoted, or had the terms of their employment undesirably changed. However, in 2006,
Burlington N. & Santa Fe Ry. Co. v. White


watered down the adverse action requirement, holding that to be adverse, the employee need only show that the change in employment terms would “dissuade a reasonable worker from making or supporting a claim of discrimination.” In the
Burlington case, the specific adverse action was that a supervisor excluded the employee from lunches.

In 2007, the Minnesota Court of Appeals seemed to adopt the
Burlington standard for adverse action, stating that it need be one that “a reasonable employee would have found . . . materially adverse;” however, the Court found that the employee’s purported adverse action (getting a poor performance review and being placed on a work plan) was not materially adverse such as to dissuade a reasonable worker.
Goodman v. City of Brooklyn Center.
[3] Notably, the Court supported its finding with cases that came well before
Burlington and stated that “being placed on a work plan was not an adverse employment action because it did not affect [the employee’s] pay, benefits, or any other conditions of her employment.” In short, the Minnesota court reiterated the pre-
Burlington threshold.

Therefore, Minnesota employees claiming retaliation fare better in the federal courts than they do in the Minnesota state courts. However, if we travel east and over the river, Wisconsin employees stand a better chance of succeeding on a retaliation claim in state court.

In 2010, the Wisconsin standard came in line with the federal
Burlington standard when the LIRC ruled that

a complainant must show that a reasonable individual would have found the challenged action adverse, that is, it well might have dissuaded a reasonable individual from opposing any discriminatory practice under the Act or from making a complaint, testifying or assisting in any proceeding under the Act, and that context matters.

Kruschek v. Trane Co


. In this case, the claimed adverse action amounted to a supervisor merely staring at the employee during work hours. Clearly, a Wisconsin employee can bring a successful retaliation case based on conduct that would be considered far too trivial for a Minnesota court.

Therefore, when considering retaliation claims, consider the most favorable jurisdiction in light of the circumstances. Failure to do so may result in an outcome as tragic as Cain and Abel themselves.

[1] U.S. EEOC, Charge Statistics FY 1997 through 2011

[2] 548 U.S. 53, 126 S. Ct. 2405 (2006)

[3] Goodman is an unpublished case and not precedent. 2007 WL 46289 (Minn. Ct. App. Jan. 9, 2007)

[4] ERD Case No. CR 200603576 (LIRC, Dec. 23, 2010)